NSW STATE LEGAL CONFERENCE ADMINISTRATIVE LAW 27 March 2015 THE HARDIMAN PRINCIPLE: The role of decision maker as contradictor in judicial review Michael Rennie 6 St James Hall Chambers INTRODUCTION 1. Together with the Model Litigant Obligation, the Hardiman Principle defines the parameters within which decision makers must conduct themselves in judicial review proceedings. Although it is a principle of the conduct of proceedings rather than the substantive administrative law, it is a vital component of understanding the battleground of administrative law litigation. 2. Briefly stated the principle holds that tribunals and decision makers may be restricted from acting as a full contradictor in review proceedings before a Court, in case such a role could damage their impartiality in subsequent proceedings or dealings with the applicant. Any submissions by such an agency may be limited to the relevant powers and procedures for the decision under review. Like any good legal principle there are limits and exceptions to its application. 3. Clearly decision makers and tribunals need to be aware of these limits and exceptions due to the adverse consequences that can arise from being found to have breached the principle. As suggested above, there is a close relationship to the Model Litigant Obligation, a “Hardiman” breach is often coupled with a complaint that the government agency has acted contrary to that obligation. Such criticism is often unpalatable for a government agency, even on the basis of the internal reporting obligations alone. 4. Further, a finding that the Hardiman Principle has been breached is also tantamount to a finding that the government contradictor made submissions that should not have been made, thereby lengthening the proceedings needlessly and exposing all parties to excessive costs even if the decision under review was upheld. The successful government agency that has had its decision affirmed may be required to pay the costs of the appellant on the basis that its submissions went ‘too far’. Government rates do not apply when a respondent agency is ordered to pay the applicant’s costs. 5. It is also useful for experienced applicant representatives to understand the obligation in detail, primarily to know when to raise the issue and when to stay silent. As suggested above, properly deployed a successful submission that the government has breached the Hardiman Principle can limit the extent to which the Court will have regard to large !1 swathes of the decision maker’s case, and make substantial progress in an argument for costs. 6. However, a misplaced allegation of a Hardiman breach can have the same damaging forensic effect as any other misplaced allegation of misconduct in litigation. An allegation improperly made risks the alleging party looking like a whinger with a lack of judgment. Under such circumstances an advocate’s ability to persuade the Court as to the strengths of your substantive case may suffer. 7. It is also possible that we are seeing a slight shift in the way in which Courts are applying the Hardiman principle. As we shall see, recent considerations of the principle appear to be withdrawing somewhat from a blanket suggestion that tribunals and decision makers should sit out any merit or judicial review proceedings. 8. This paper attempts to briefly examine: a. the origins of the principle from the decision R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 (Hardiman); b. the current boundaries, exceptions and limits to the principle; c. some of the criticisms of the principle that have arisen as well as some discussions as to how it might evolve in the future; and d. recent detailed considerations of the principle in: i. discussions in the Court of Appeal and High Court in the proceedings between Margaret Cunneen SC and ICAC; and ii. the Federal Court’s response to a Hardiman complaint in Apple Inc v Registrar of Trade Marks [2014] FCA 1304. THE ORIGINS OF THE PRINCIPLE Background to the dispute in Hardiman 9. Hardiman concerned an application to the Australian Broadcasting Tribunal (the Tribunal) for approval of an acquisition of half of the share capital of a company that held a commercial television licence. 10. At the time, a person contravened s.92 of the Broadcasting and Television Act 1942 (Cth) if that person had a prescribed interest (more than 5% of the shares in a licensee) in 3 or more commercial television licences. The prohibition extended to holdings held through a number of different companies. This made it possible for certain acquisitions that appeared unrelated to cause a shareholder to, whether deliberately or otherwise, contravene s.92. The Act permitted a person to apply to the Tribunal for approval of the transaction where such an acquisition procured a contravention of s.92. !2 11. In this case Control Investments Pty Ltd (Control), a subsidiary of News Corporation Ltd (NewsCorp), purchased half of Ansett Transport Industries Ltd (ATI). A subsidiary of ATI held a commercial television licence, Channel 10 Melbourne. NewsCorp also held interests in other commercial television licences. The Tribunal was convened to enquire: a. Whether the acquisition would result in any person holding a prescribed interest under s.92; and b. Whether the change of ownership and control of the licensee was in the public interest. 12. The Australian Labor Party (the ALP) appeared at the hearing before the Tribunal. The ALP argued that before making the transaction Control / NewsCorp had acquired a prescribed interest and contravened s.92, and that breaches of the criminal law had occurred as a result of the transaction. The ALP was not in a position to lead evidence to prove that case of criminal conduct, but stated that the evidence before the Tribunal was sufficient to raise the question, and that therefore the Tribunal was obliged to investigate further. For the purposes of the hearing, the ALP considered that it was entitled to cross-examine witnesses on the basis of the concerns that it argued arose from the material available. 13. Disputes arose during the conduct of the hearing between Counsel for the ALP and the Tribunal about these issues and primarily: a. the extent to which the ALP was entitled to make a case of criminal conduct within the context of the hearing or whether the Tribunal was obliged to conduct such an inquiry itself; and b. whether the Tribunal was able to limit the ALP’s cross-examination of witnesses to 30 minutes or less. 14. Nicholson QC’s cross-examination of Mr Murdoch brought the matter to a head. The Tribunal applied the 30 minute limit, but invited counsel to apply for an extension. Nicholson QC, for the ALP, insisted that he had a right to continue to cross-examine without applying for an extension and indicted that he expected to go quite some time. The Chair of the Tribunal, Bruce Gyngell, reiterated that the Tribunal was entitled to set such limits as it wished on cross-examination. Nicholson QC stated that in the circumstances there was little purpose in his client continuing to be represented before the Tribunal. 15. The ALP withdrew from the hearing and sought an order nisi for mandamus and prohibition against the Tribunal and Control in the High Court. 16. From a vantage point some 35 years later, it appears that the subtext behind all of the action was tantamount to an allegation by the ALP that the Tribunal was abdicating its obligation to regulate media concentration laws. Presumably it did not help that the Chair at of the Tribunal and the key decision maker at the hearing, Bruce Gyngell, had !3 been a busy and successful television executive prior to taking up his position as Chair.1 The ALP did not make any submissions or allegations of an apprehension of bias or make allegations of any form of corruption, nor is any made here. The ALP’s submissions merely focussed on whether the Tribunal had adequately fulfilled its statutory functions, but the stakes were comparatively high. The case before the High Court 17. The ALP, the Tribunal and Control / NewsCorp were all represented in the High Court. The head note to the case records both the key submissions made on behalf of the Tribunal, and the cautions given to the Tribunal by Mason & Gibbs JJ as follows: [Mason J. It is unusual for the Tribunal in proceedings of this kind to present a substantive argument.] [Gibbs J. The Tribunal is assuming the role of an active party.] The application raises important questions about the procedures the Tribunal should follow. [Gibbs J. The Court considers that the most convenient course will be for you to state your submissions in a summary form without elaboration.] The Tribunal was entitled to set a time limit on cross-examination subject to an overriding discretion to extend it in appropriate circumstances. Counsel's refusal to apply for an extension and his withdrawal from the hearing disentitles the prosecutors to relief. … The time limitation did not infringe the rules of natural justice. The Tribunal could impose it under Div. 3 of Pt II. The Tribunal did not insist upon the panel system of cross-examination. The inquiry was only concerned with whether the applicant would be in breach of s. 92 as a result of approval of the transaction. Questions of breaches by other persons were irrelevant. The Tribunal was entitled to insist on legally admissible evidence in appropriate cases, and to stop counsel from seeking to establish by cross-examination breaches of the Act and the criminal law, particularly when the alleged offences were not specified. … (Case references omitted). 1 http://en.wikipedia.org/wiki/Bruce_Gyngell – “During the 1970s Gyngell was the head of many television networks in Australia, including the Nine Network, the Seven Network and also as deputy chairman of ATV in the United Kingdom.